Arizona Eagletarian

Wednesday, December 9, 2015

Redistricting -- Harris oral arguments analysis

Remember from yesterday's post that news coverage of the hearing seemed to lean toward wondering how the Harris plaintiffs could even justify bringing this case to the Supreme Court? Therefore, as USA Today reported,

The Supreme Court on Tuesday appeared unlikely to toss out Arizona's state legislative districts because of population differences, but several justices expressed concern that an independent redistricting commission took politics, along with race and ethnicity, into consideration.

This evening I began reading the 74-page transcript. It didn't take long before I could see why Richard Wolf would be so bold as to make that his lede.

Plaintiffs' (Appellant, in this case) counsel goes first in the hearing. That was Thor Hearne. He began,

Thank you, Mr. Chief Justice, and may it please the Court: The one-­person, one-vote principle of the Equal Protection Clause requires an apportionment authority to make a good ­faith effort to equally apportion the population as practically as possible, and while deviations are tolerated, they are only minor deviations made for legitimate purposes of a rational State policy intended not to be discriminatory or arbitrary.

Here, the Arizona Redistricting Commission malapportioned Arizona State legislature by almost 10 percent, 8.8 percent, and the district court below found it did so for two reasons.

The first reason was to obtain a partisan advantage for the Democrat[ic] party.

The second reason was a perceived belief that malapportioned districts were necessary to obtain Justice Department preclearance approval. Neither of these reasons justifies a deviation from the constitutional principle of one person, one vote.

That, of course, was the essence of the entire case boiled down to the least common denominator. It was also as far as he was able to get before the first interruption for questions took place. Justices Kennedy and Ginsberg were both apparently champing at the bit to challenge Hearne. Kennedy asked,

...do you want us to overturn the factual finding that compliance with the Voting Rights Act, the preclearance procedures, was the real reason for the deviation? Do you want us to overturn that as a factual finding?

Hearne replied in the negative but tried to push ahead with his premise, which was,

...we have said, as we've noted in the briefing, it was not necessary to under­populate districts to obtain compliance with the Voting Rights Act.

Then Notorious RBG (Justice Ginsberg) volleys back with what shouldn't be surprising but may in fact have been the bottom-line coup de gras,

... it's odd that you're making this charge that there was an impermissible effort to increase the Democratic authority, power, in the legislature, but the end result was that the Arizona plan gave Republicans more than their proportionate share of seats in the State legislature. And I think the numbers are, in total, Republicans won 56.6 percent of the State Senate seats, 60 percent of the State House seats. And that exceeded the Republican party's Statewide registration share of 54.4 percent. So if there was an attempt to stack this in favor of Democrats, it certainly failed.

One would think that absent counsel making a compelling argument to rebut that fact, or perhaps a sympathetic justice coming up with a softball question to put something on the record to justify why these clowns had brought this suit in the first place, as Dandy Don Meredith used to sing on Monday Night Football, turn out the lights, the party's over. But I'm only on page 6 of 74.

The obvious overview for predicting the outcome of this case has to consider that at least four justices are likely -- before even considering the testimony of counsel yesterday -- to vote in favor of the Redistricting Commission. The second obvious point is that Justice Kennedy would be the most likely fifth vote.

From news reports posted yesterday, it seems Justice Alito may have been the only one to even give it the old college try to support the Republican case for killing the current map. Scalia quipped and got some laughs when asking Brnovich why this was the first he had weighed in on the case and why the Secretary of State only now was challenging the maps. But even he was skeptical of Hearne's argument (see pages 8 and 9 of the transcript).

Evan Wyloge's coverage addresses the back and forth with Alito (beginning on page 22 of the transcript) trying to see if there was something about the AIRC doing too much adjusting to meet requirements of the Voting Rights Act. Wyloge mentions Breyer's frustration with that issue. But Kennedy and Kagan also had trouble with Brnovich's claims on that question.

Those two justices tried to get at whether or not the incidental population variations, if they had been arrived at in efforts to protect county lines or communities of interest (other criteria necessary for the AIRC to weigh in drawing the maps) would also be unconstitutional. Brnovich answered, but his answer (to me) seemed pretty shallow.

I guess, you know, the road to hell is paved with good intentions. And so our position is, regardless of their intention, if they are doing it in a systematic way or intending to overpopulate certain districts, under­populate other districts, that is unconstitutional.

It's not like anyone could have expected Brno to give an answer that would have overtly betrayed his cause, but... doesn't it depend on whose ox is getting gored?

If the population deviations were a result of trying to protect counties or communities of interests, would we REALLY have been in that hearing at all?

Given that "communities of interest," that nefarious and undefined in law concept pushed especially by Republicans in Saddlebrooke, north of Tucson, would Wes Harris and Andy Biggshot's wife (and the other plaintiffs) really have been complaining? It seems to have been a salient, if rhetorical, question.

Then we get to the quote from Chief Justice Roberts, as reported by Richard Wolf at USA Today,

...justices on both sides of the ideological divide said the five-member panel tried to draw enough districts capable of electing minorities, and that was sufficient reason to have population variations approaching 10% -- even though the court later struck down the federal rule the commission was following.

"The pre-clearance process at the Department of Justice is famously opaque," Chief Justice John Roberts said in reference to the provision his ruling eviscerated in 2013. As for any political influence, he added, "Where is the district in which, ­­or the state in which, partisanship does not play a role in redistricting?"

Could this be "game, set, match?" Maybe.

Justice Kagan went further (on page 17),

... I thought, Mr. Hearne, that you were saying that the thing that you had presented had to do with an impermissible motive, and the impermissible motive was that they didn't have to do all this for Voting Rights Act compliance; is that right?

MR. HEARNE: I'd say there's two, the first impermissible motive or illegitimate justification is partisanship, to gain an advantage.

JUSTICE KAGAN: Right. But that's the very thing that you said, you weren't challenging the factual finding, that that was a subsidiary part of the redistricting.

MR. HEARNE: That was

JUSTICE KAGAN: The dominant part was the voting rights compliance, and I take it you want to undermine the voting rights compliance rationale. But then I'm stuck on the same question that Justice Scalia is stuck on, is what evidence did you present that there was an impermissible motive with respect to that, as opposed to different views as to what the Voting Rights Act compelled?

MR. HEARNE: Two quick answers to that, Justice Kagan. First is, legally the Voting Rights Act couldn't compel them to do what they did, so that justification legally is invalid. Secondly, we bring up that point about the burden shift with Arlington Heights and Mt. Healthy, where when we show an illegitimate motive partisanship, then the burden ­­ task falls to the Commission to justify that.

So, basically, Thor's argument boiled down to trying to psych the court into letting him get away without having to prove a negative (about compliance with the VRA/seeking preclearance) and to get them to buy into his demand that the IRC justify -- all over again -- what and why they did what they did. All over again meaning that the IRC was painstaking in its detailed record of the proceedings and that the March 2013 trial also went over it all in detail.

So, of course it would be foolish of me to declare victory just a day after the hearing, but I don't see where Harris and Reagan get five votes to undermine the work of the AIRC.